Why I support the Non Partisan Missouri Court Plan

It was the satirist H.L. Mencken who said that “democracy is the theory that the common

people know what they want, and deserve to get it good and hard.” I’m more optimistic thanthe famously cynical Mencken about the intelligence of my fellow citizens, and, as someonewho grew up elsewhere but is now proud to call this City and State home, I have always beenimpressed that Missourians’ reputation for stubbornly forming their own opinions is welldeserved. This healthy skepticism will come in handy this November, when Missouri voters willconfront a proposed amendment to Missouri’s constitution that would change how appellatecourt judges are selected. This constitutional amendment, which supporters are cleverlybut misleadingly characterizing as a “reform,” would replace the system that has workedsuccessfully for appointing Missouri appellate judges for more than 70 years with a schemethat would allow a governor to handpick appellate judges without any oversight. I’m referring,of course, to SJR51, which claims to be a reform of the Missouri Nonpartisan Court Plan’sAppellate Judicial Commission, but in reality would destroy it and make the governor’s power toappoint judges just another political plum to award to supporters.

First, some background. Tired of the harmful effects of party politics on judicial elections,Missouri voters in 1940 approved the “Missouri Plan,” a constitutional amendment that replacedjudicial elections for appellate judges, as well as lower court judges in the urban areas of JacksonCounty and St. Louis City, with an Appellate Judicial Commission that makes recommendationsto the governor (The Missouri Plan has been expanded since to encompass suburban KansasCity and St. Louis, as well as Greene County). Under the Missouri Plan, whenever there isan opening on the Missouri Supreme Court or one of Missouri’s three intermediate Courts ofAppeal, a non-partisan seven-person Appellate Judicial Commission reviews applicants andrecommends a slate of three candidates to the Missouri’s governor, who alone has the finalsay. The Appellate Judicial Commission is comprised of the Chief Justice of the MissouriSupreme Court, three lawyers elected by the Missouri Bar (the mandatory bar association for allof Missouri’s lawyers), and three non-lawyer selected by the governor. The Chief Justice of theMissouri Supreme Court is also chairs the Appellate Judicial Commission for the duration of hisor her two-year term as Chief Justice; all other members have staggered, six-year terms.

The staggered six-year terms are an important feature of the Appellate Judicial Commissionbecause they mean that any given governor inevitably will have judicial candidatesrecommended to him by commission members selected by his or her predecessor. For instance,although Gov. Jay Nixon is a Democrat, two of the three current, non-lawyer members on theAppellate Judicial Commission were chosen by his Republican predecessor, Matt Blunt. Thebeauty of this system is that it forces bi-partisan cooperation and involves multiple stakeholders— lay members of the community, practicing lawyers who are uniquely qualified to assesscandidates’ legal reasoning and judicial temperament, and, of course, the governor, who isaccountable to voters — without overly politicizing the process seen in states that have directelection of appellate level judges. In fact, the Missouri Plan works so well in minimizing politicsin appellate judge selection that similar merit-based plains have been enacted in more than 30states.

SJR51 would change all this by giving the governor the ability to pack the Appellate JudicialCommission with his or her own supporters, who would be sure to recommend for formalapproval the governor’s preferred candidate. At first blush, giving the governor an unfettered

right to select judges may sound reasonable, but unlike the federal system in which thepresident’s, judicial nominees must be approved by the U.S. Senate, the governor’s choices arenot subject to legislative approval thereby making the moderating influence of the AppellateJudicial Commission an important check and balance. SJR51 would make a sham of theAppellate Judicial Commission by expanding the number of the governor’s appointees fromthree to four and by shortening the terms from six years to four so that a governor could appointa majority of the Appellate Judicial Commission’s members — four out of seven — within twoyears of his or her election. The governor’s four appointees would no longer be prohibitedfrom being lawyers, as is currently the case. This will all but ensure the appointment of acertain type of lawyer who is both a connected insider and a partisan eager to do the governor’sbidding. SJR51 would keep the Appellate Judicial Commission at seven voting members byremoving the Supreme Court Chief Justice as a voting member and replacing him or her with anessentially meaningless spot for a non-voting retired judge.

Critics of the Missouri Plan claim that the current process is dominated by lawyers, that it lacksaccountability to average Missourians, and that it is “elitist.” The last criticism is nothingmore than a traditional, right-wing dog whistle designed to distract from the truth and stir voterresentment long enough to get people to vote for SJR51, which actually would lead to thosethings is enactment would purportedly prevent: domination by lawyers, lack of accountabilityand elitism. I could tell you that all these criticisms of the Missouri plan are false, but you don’thave to take my word for it. The best arguments against SJR51 are found in the measure itself,which does nothing to address the supposed problems with the Missouri Plan but would do muchto create them.

Interestingly, support for SJR51/the Missouri Plan is the rare issue these days that does not breakneatly along Democratic/Republican party lines. To be sure, opponents of the Missouri planand supporters of SJR51 are overwhelmingly Republican. However, a number of prominentRepublican lawyers support the Missouri Plan and oppose SJR51, chief among them JudgeWilliam Ray Price, who was appointed by former Gov. John Ashcroft and recently submitted hisresignation after 20 years on the Missouri Supreme Court. As Judge Price told the Post-Dispatchafter submitting his resignation, “”Political pressure for result-oriented decisions has increased.People want to achieve in court what they are unable to achieve in the legislative process. Theyincreasingly want to draw us into their world.”

By “their world,” Judge Price means “the political world.” In other words, contrary to thelofty claims of the supporters of SJR51 that the constitutional amendment will improve theaccountability and quality of Missouri’s appellate judiciary, the real difference of opinionis between people who oppose SJR51 because they know how harmful it will be to theindependence of Missouri’s appellate judges and those who favor the constitutional amendmentfor exactly that reason.